114 U.S.

564
5 S.Ct. 1050
29 L.Ed. 277

WALES
v.
WHITNEY, Secretary of the Navy.
May 4, 1885.

S. Shellabarger, J. M. Wilson, and F. P. B. Sands, for appellant.

John S. Blair, for appellee.
MILLER, J.

This is an appeal from a judgment of the supreme court of the District of

Columbia, which refused to make an order on a writ of habeas corpus relieving
appellant from the custody of the appellee, who, it is alleged, held the appellant
in restraint of his liberty unlawfully. Upon the decision of the supreme court of
the district, adverse to petitioner, an application for an original writ of habeas
corpus was made to this court by counsel for appellant, but on a suggestion
from the court that an act of congress, at its session just closed, had restored the
appellate jurisdiction of this court in habeas corpus cases over decisions of the
circuit courts, and that this necessarily included jurisdiction over similar
judgments of the supreme court of the District of Columbia, counsel, on due
consideration, withdrew their application, and, appealing from the judgment of
that court, bring here the record of it for review.

Section 846 of the Revised Statutes of the District of Columbia, which makes
the jurisdiction of this court over judgments and decrees of the circuit courts of
the United States the measure of its jurisdiction (except as regards the sum in
controversy) over judgments and decrees of the supreme court of the district in
similar cases, justifies the exercise of our appellate jurisdiction in the present
case. The original petition for the writ was addressed to Mr. Justice COX of the
supreme court of the district, and alleged that on the second day of March,
1885, the petitioner was arrested and imprisoned, and ever since has so
remained in arrest and imprisonment, and restrained of his liberty in the District
of Columbia, illegally. The petition sets out an order of the secretary of the

navy, under which this restraint is exercised, which order is in the following
terms:
3

'WASHINGTON, February 28, 1885.

'SIR Transmitted herewith you will receive charges, with specifications,

preferred against you by the department. A general court-martial has been
ordered to convene in rooms numbered 32 and 33, at the navy department,
Washington, D. C., at 12 o'clock noon, on Monday, the ninth proximo, at
which time and place you will appear and report yourself to Rear Admiral
Edward Simpson, United States navy, the presiding officer of the court, for
trial. The judge advocate will summon such witnesses as you may require for
your defense.

'You are hereby placed under arrest, and you will confine yourself to the limits
of the city of Washington.

'Very respectfully,

'WM. E. CHANDLER,

'Medical Director

Secretary of the Navy.

10

'PHILIP S. WALES,

11

'U. S. N., Washington, D. C.' It also makes an exhibit to the petition a copy of
the charges and specifications accompanying this order. It is unnecessary to say
more of these charges at present, than that they relate to derelictions of duty on
the part of the appellant while he was surgeon general of the navy, and as such
had charge of the bureau of medicine and surgery in the navy department,
which office he held from August 20, 1879, to January 26, 1884. He had
therefore ceased to be surgeon general, and was in the exercise of his functions
as medical director of the navy when this order was served on him. Judge COX
issued the writ directed to William C. Whitney, secretary of the navy, who had
become such by succession to Secretary Chandler. To this writ Secretary
Whitney made return, stating the ction of Secretary Chandler, and the history of
the appellant's connection with the navy since he was appointed medical
inspector in June, 1873; the charges preferred against him as chief of the bureau

of medicine and surgery, and the order of arrest of Secretary Chandler, and
closes his return as follows:
12

'Your respondent respectfully submits that the said Philip S. Wales is not now,
nor was at the time of issuing the annexed writ, in the custody or possession of,
or confined or restrained of his liberty by, your respondent, other than as
appears by the papers marked A, B, and C, attached hereto and made part of
this return, and that the cause of such detention, if any there be, is fully shown
in said exhibits.

13

'And your respondent further answers that neither he, nor any one by his
authority, has exercised any physical restraint over the said Philip S. Wales
before or since the issue of said writ.

14

'Your respondent further answers that by virtue of his office as secretary of the
navy, the said Philip S. Wales being a medical director in the navy, was, at the
time of the issuing of the said writ, and has since continually been, in the power
of your respondent, so far as the statutes of the United States and the
regulations of the navy, not inconsistent therewith, have vested him with
authority over the said Philip S. Wales.

15

'Your respondent further says that he knows of no obstacle or impediment to

prevent the said Philip S. Wales from being present before your honor at the
time and place fixed in the said writ; but, in order to comply with the order of
your honor, and under and by virtue of his authority as secretary of the navy, he
has ordered the said Philip S. Wales to be present at the time and place so fixed.
Wherefore the said William C. Whitney, secretary of the navy, has here, before
your honorable court, the body of the said Philip S. Wales, together with the
said writ, as therein he is commanded.

16

'W. C. WHITNEY,

17

'Secretary of the Navy.'

18

To this return the petitioner, by his counsel, demurred, when, on this demurrer,
and after motion of the respondent to discharge the writ, Mr. Justice Cox
certified the case into the court in general term. That court, after full hearing
and due consideration, made the following order:

19

'Habeas Corpus. Ex relatione PHILIP S. WALES.No. 15,780.

20

'This cause coming on for hearing, and having been argued by counsel and duly
considered, it is, this fourteenth day of April, 1885, ordered and adjudged that
the petition be dismissed, with costs, the court being of opinion that the relator
has not been, nor is he at this present, deprived of his personal liberty by virtue
of the orders of the secretary of the navy set out in the petition.

21

'By the court:

22

A. WYLIE.

23

It is from this order that the present appeal is taken.

24

The only other matter apparent in the record necessary to be stated at this time
is that the court-martial referred to in the order of arrest was duly appointed,
assembled, and organized, and that appellant appeared before it, and, at his
request, it has been adjourned from time to time to await the result of these
proceedings in habeas corpus. Two questions have been elaborately argued
before us, namely: (1) Does the return of the secretary of the navy to the writ
and its accompanying exhibits show such restraint of the liberty of the
petitioner by that officer as justifies the use of the writ of habeas corpus? (2) If
there is a restraint, which in its character demands the issue of the writ, are the
charges for which the petitioner is required to answer before the naval courtmartial of the class of which such a court has jurisdiction? The latter is a
question of importance and not free from difficulty, since its solution requires
the court to decide whether the surgeon general of the navy, as chief of the
bureau of medicine and surgery in the department of the navy, under the
immediate supervision of the secretary, is liable for any failure to perform is
duties as surgeon general, to be tried by a military court, under the articles of
war governing the navy, or has a right for such offenses to be tried alone by the
civil courts, and according to the law, for offenses not military. Is he, in that
character, in the civil or military service of the United States? The difficulty of
stating the question shows the embarrassment attending its decision. The other
question, however, has precedence, both because it is the one on which the
court of the district decided it, and because, if there was no such restraint,
whether legal or illegal, as to call for the use of the writ, there is no occasion to
inquire into its cause.

25

It is obvious that petitioner is under no physical restraint. He walks the streets

of Washington with no one to hinder his movements, just as he did before the
secretary's order was served on him. It is not stated as a fact in the record, but it
is a fair inference, from all that is found in it, that, as medical director, he was

residing in Washington and performing there the duties of his office. It is

beyond dispute that the secretary of the navy had the right to direct him to
reside in the city in performance of these duties. If he had been somewhere else
the secretary could have ordered him to Washington as medical director, and, in
order to leave Washington lawfully, he would have to obtain leave of absence.
He must, in such case, remain here until otherwise ordered or permitted. It is
not easy to see how he is under any restraint of his personal liberty by the order
of arrest which he was not under before. Nor can it be believed that, if this
order had made no reference to a trial on charges against him before a courtmartial, he would have felt any restraint whatever, though it had directed him to
remain in the city until further orders. If the order had directed him so to
remain, and act as a member of such court, can any one believe he would have
felt himself a prisoner entitled to the benefit of a writ of a writ of habeas
corpus?
26

On the other hand, there is an obvious motive on the part of the petitioner for
construing this order as making him a prisoner in the custody of the secretary.
That motive is to have himself brought before a civil court, which, on inquiry
into the cause of his imprisonment, may decide that the offense with which the
secretary charges him is not of a millitary character, is not one of which a naval
court-martial can entertain jurisdiction, and, releasing him from the restraint of
the order of arrest, it would incidentally release him from the power of that
court. But neither the supreme court of the district nor this court has any
appellate jurisdiction over the naval court-martial, nor over offenses which such
a court has power to try. Neither of these courts is authorized to interfere with it
in the performance of its duty, by way of a writ of prohibition or any order of
that nature. The civil courts can relieve a person from imprisonment under
order of such court only by writ of habeas corpus, and then only when it is
made apparent that it proceeds without jurisdiction. If there is no restraint there
is no right in the civil court to interfere. Its power, then, extends no further than
to release the prisoner. It cannot remit a fine, or restore to an office, or reverse
the judgment of the military court. Whatever effect the decision of the court
may have on the proceedings, orders, or judgments of the military court, is
incidental to the order releasing the prisoner. Of course, if there is no prisoner
to release, if there is no custody to be discharged, if there is no such restraint as
requires relief, then the civil court has no power to interfere with the military
court, or other tribunal over which it has by law no appellate jurisdiction.

27

The writ of habeas corpus is not a writ of error, though in some cases in which
the court issuing it has appellate power over the court by whose order the
petitioner is held in custody, it may be used with the writ of certiorari for that
purpose. In such case, however, as the one before us, it is not a writ of error. Its

purpose is to enable the court to inquire, first, if the petitioner is restrained of

his liberty. If he is not, the court can do nothing but discharge the writ. If there
is such restraint, the court can then inquire into the cause of it, and if the
alleged cause be unlawful, it must then discharge the prisoner. There is no very
satisfactory definition to be found is the adjudged cases of the character of the
restraint or imprisonment suffered by a party applying for the writ of habeas
corpus, which is necessary to sustain the writ. This can hardly be expected from
the variety of restraints for which it is used to give relief. Confinement under
civil and criminal process may be so relieved. Wives restrained by husbands,
children withheld from the proper parent or guardian, persons held under
arbitrary custody by private individuals, as in a mad-house, as well as those
under military control, may all become proper subjects of relief by the writ of
habeas corpus. Obviously, the extent and character of the restraint which
justfies the writ, must vary according to the nature of the control which is
asserted over the party in whose behalf the writ is prayed.
28

In the case of a man in the military or naval service, where he is, whether as an
officer or a private, always more or less subject in his movements, by the very
necessity of military rule and subordination, to the orders of his superior
officer, it should be made clear that some unusual restraint upon his liberty of
personal movement exists to justify the issue of the writ: otherwise every order
of the superior officer directing the movements of his subordinate, which
necessarily to some extent curtails his freedom of will, may be held to be a
restraint of his liberty, and the party so ordered may seek relief from obedience
by means of a wrot of habeas corpus.

29

Something more than moral restraint is necessary to make a case for habeas
corpus. There must be actual confinement or the present means of enforcing it.
The class of cases in which a sheriff or other officer, with a writ in his hands for
the arrest of a person whom he is required to take into custody, to whom the
person to be arrested submits without force being applied, comes under this
definition. The officer has the authority to arrest, and the power to enforce it. If
the party named in the writ resists or attempts to resist, the officer can summon
by-standers to his assistance, and may himself use personal violence. Here the
force is imminent and the party is in presence of it. It is physical power which
controls him, though not called into demonstrative action. It is said in argument
that such is the power exercised over the appellant under the order of the
secretary of the navy. But this is, we think, a mistake. If Dr. Wales had chosen
to disobey this order, he had nothing to do but take the next or any subsequent
train from the city and leave it. There was no one at hand to hinder him. And
though it is said that a file of marines or some proper officer could have been
sent to arrest, and bring him back, this could only be done by another order of

the secretary, and would be another arrest, and a real imprisonment under
another and distinct order. Here would be a real restraint of liberty, quite
different from the first. The fear of this latter proceeding, which may or may
not keep Dr. Wales within the limits of the city, is a moral restraint which
concerns his own convenience, and in regard to which he exercises his own
will.
30

The present case bears a strong analogy to Dodge's Case in 6 Mart. (La.) 569. It
appeared there that the party who sued out the writ had been committed to jail
on execution for debt, and having given the usual bond by which he and his
sureties were bound to pay the debt if he left the prison bounds, he was
admitted to the privilege of those bounds. The plaintiff in executi n failing to
pay the fees necessary to the support of the prisoner, the latter sued out a writ of
habeas corpus. That eminent jurist, Chief Justice MARTIN, said, on appeal to
the supreme court: 'It appears to us that the writ of habeas corpus was
improperly resorted to. The appellee was under no physical restraint, and there
was no necessity to recur to a court or judge to cause any moral restraint to
cease. The sheriff did not restrain him, since he had admitted him to the benefit
of the bounds; the doors of the jail were not closed on him, and if he was
detained it was not by the sheriff or jailer. If his was a moral restraint it could
not be an illegal one. The object of the appellee was, not to obtain the removal
of an illegal restraint from a judge, but the declaration of the court that the
plaintiffs in execution had by their neglect lost the right of detaining him. A
judgment declaring such neglect, and pronouncing on the consequences of it,
was what the appellee had in view.' The judgment awarding the writ was
reversed. The analogy to the case before us is striking.

31

A very similar case was passed upon by the supreme court of Pennsylvania in
Respublica v. Arnold, 3 Yeates, 263. A party who had been indicted for arson,
and had given bail for his appearance to answer the indictment, applied, while
out under bail, to be discharged by writ of habeas corpus, on the ground of
delay in the prosecution. The court held that the statute of Pennsylvania, which
was a re-enactment of the habeas corpus act of 31 Charles II., c. 2, spoke of
persons committed or detained, and clearly did not apply to a person out on bail.
And Mr. Justice YEATES very pertinently inquires, 'Would not a habeas
corpus directed to the bail of a supposed offender be perfectly novel?' And
SMITH, J., said that the inclination of his mind was that habeas corpus could
not lie to the bail.

32

In a note to the cases of Rex v. Dawes and Rex v. Kessel, 1 Burr. 638, the same
principle is stated, though by whom the note is made does not appear. Both
these persons were brought before Lord MANSFIELD, in the king's bench, on

a rule against the commissioners to enforce an act of parliament to increase the

army. In both cases the ground on which the discharge was asked, was that they
were illegally pressed into the service. Lord MANSFIELD discharged one
because his statement was found to be correct, and refused the other because
his statement was not true. The note to the report, apparently in explanation of
the fact that they were not brought before the court by writ of habeas corpus,
and that no objection was taken to the rule by the commissioner, says: 'Neither
of these could have brought a habeas corpus; neither of them was in custody.
Dawes had deserted and absconded, and Kessel had been made a corporal. No
objection was made by the commissioner to the propriety of the method
adopted.' Chief Baron COMYN cites the cases as showing that the parties
could not bring habeas corpus, because they were not in custody. 4 Com. Dig.
313, 'Habeas Corpus' B.
33

While the acts of congress concerning this writ are not decisive, perhaps, as to
what is a restraint of liberty, they are evidently framed in their provisions for
proceedings in such cases on the idea of the existence of some actual restraint.
Section 754, Rev. St., says the application for the writ must set forth 'in whose
custody he [the petitioner] is detained, and by virtue of what claim or authority,
if known;' section 755, that 'the writ must be directed to the person in whose
custody the party is;' section 757, that this person shall certify to the court or
justice before whom the writ is returnable, the true cause of the detention; and
by section 758 he is required 'at the same time to bring the body of the party
before the judge who granted the writ.' All these provisions contemplate a
proceeding against some person who has the immediate custody of the party
detained, with the power to produce the body of such party before the court or
judge, that he may be liberated if no sufficient reason is shown to the contrary.

34

In case of a person who is going at large, with no one controlling or watching

him, or detaining him, his body cannot be produced by the person to whom the
writ is directed, unless by consent of the alleged prisoner, or by his capture and
forcible traduction into the presence of the court. The record in the present case
shows that no such thing was done. The secretary denies that Wales is in his
custody, and he does not produce his body; but Wales, on the direction of the
secretary, appears without any compulsion, and reports himself to the court and
to Justice Cox, as he did to the court-martial. We concur with the supreme court
of the district in the opinion that the record does not present such a case of
restraint of personal liberty as to call for discharge by a writ of habeas corpus.
In thus deciding we are not leaving the appellant without remedy, if his counsel
are right in believing the court-martial has no jurisdiction of the offense of
which he is charged. He can make that objection to that court before trial. He
can make it before judgment after the facts are all before that court. He can

make it before the reviewing tribunal. If that court finds him guilty, and
imposes imprisonment as part of a sentence, he can then have a writ to relieve
him of that imprisonment. If he should be deprived of office, he can sue for his
pay and have the question of the jurisdiction of the court which made such an
order inquired into in that suit. If his pay is stopped, in whole or in part, he can
do the same thing. In all these modes he can have relief if the court is without
jurisdiction, and the inquiry into that jurisdiction will be more satisfactory after
the court shall have decided on the nature of the offense for which it punishes
him than it can before. And this manner of relief is more in accord with the
orderly administration of justice and the delicate relations of the two classes of
courts, civil and military, than the assumption in advance by the one court that
the other will exercise a jurisdiction which does not belong to it.
35

The judgment of the supreme court of the District of Columbia is affirmed.